United States District Court, N.D. Alabama, Northeastern Division
November 26, 2014
UNITED STATES OF AMERICA, Plaintiff,
MARY HELMS, Defendant
For United States of America, Plaintiff: David A O'Neal, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE, Atlanta, GA.
REPORT AND RECOMMENDATION
JOHN E. OTT, United States Magistrate Judge.
This is an action wherein the United States of America, on behalf of the Federal Emergency Management Agency (FEMA), seeks to recover possession of a Temporary Housing Unit (THU) provided defendant Mary Helms (Helms) following the devastating storms of April 2011. (Doc. 1). The case is presently before the court on the motion of the United States for a default judgment against Helms. (Doc. 7). Upon consideration, the court finds that the motion is due to be granted.
After the President of the United States issued a major disaster declaration for several Alabama counties following the April 2011storms, FEMA loaned Helms a THU on May 22, 2011. (¶ 8). The home is located at 29911 Chipmunk Way, Lot A, Harvest, Alabama 35749-6821. (¶ 17).
FEMA determined that as of October 28, 2012, the Alabama disaster no longer posed an extraordinary circumstance and that continuing the FEMA Direct Housing Program would not serve the public interest. (¶ 18). Accordingly, FEMA issued Helms an " End of Period of Assistance" notice on August 28, 2012, informing her that the program would end on October 28, 2012. (¶ 19). On November 8, 2012, FEMA hand-delivered a " Notice of Revocation" to Helms informing her that the program had ended. (¶ 20). FEMA has not recertified Helms for continued eligibility for the program or otherwise extended her right to occupy the THU. (¶ 21). On April 18, 2013, Helms was issued a final " Notice to Surrender Possession" of the TH U.She was informed that she was required to surrender possession of the THU immediately and that FEMA would take legal action to obtain possession of the THU. (¶ 22). Despite the notices, Helms has failed to vacate the THU. (¶ 23).
Helms has informed Laura League with FEMA that she had a plan to purchase permanent housing. In April 2014, Don Griffin observed an uninstalled mobile home unit next to FEMA's THU on Helms' property. (¶ 24). The home appears to be habitable and in relatively good condition, according to Griffin. (¶ 28). Accordingly, it qualifies as adequate alternate housing for Helms. (¶ 29). As of September 5, 2014, Helms still has not relinquished possession of the THU. (¶ 31).
This action was filed and Helms was served with the complaint and summons on August 20, 2014. (Doc. 3). She has not filed any response to the complaint. On September 22, 2014, the Clerk of the Court entered a default pursuant to Fed.R.Civ.P. 55(a).
When a plaintiff's claims are legally well-founded and the defendant has failed to timely respond, the court many enter a default judgment. Campbell v. Humphries, 353 F.App'x 334, 337 (11th Cir. 2009). Accordingly, the court will proceed with a discussion of the merits of the plaintiff's complaint.
Federal law provides that a THU may be provided to a recipient for up to eighteen months unless there is a showing of extraordinary circumstances. 42 U.S.C. § 5174(c)(1)(B)(ii); 44 C.F.R. § 206.110(e). Under the applicable regulations, the recipient is to " obtain and occupy permanent housing at the earliest possible time." 44 C.F.R. § 206.114(a). FEMA may continue direct housing assistance " only when adequate, alternate housing is not available or when the permanent housing plan has not been fulfilled through no fault of the applicant." Id.
Helms's " End Date" for assistance passed over two years ago. Alternate housing appears to be available to her based on the observations of Griffin. She has been adequately notified of the termination date for her use of the THU. Under the Uniform Commercial Code (U.C.C. § 2A-103), Alabama State law (ALA. CODE § 7-2A-301), and federal bailment law ( see Blair v. United States, 164 F.2d 115, 116 (5th Cir. 1947)), FEMA is entitled to possession of the THU at this juncture -- not Helms. The court sees no right of the defendant to retain possession of the THU loaned to her by FEMA. Additionally, Helms should be required to relinquish possession of the THU to FEMA no later than 30 days from the entry of a judgment in this case.
RECOMMENDATION AND RIGHT TO OBJECT
Premised on the foregoing, the undersigned finds that the motion of the United States for a default judgment (doc. 7) is due to be granted. An order is due to be entered fining that FEMA is entitled to possession of the THU and Helms should be required to relinquish possession of the THU to FEMA no later than 30 days from the entry of a judgment in this case. It is so recommended.
Any party may file specific written objections to this report and recommendation within fourteen (14) days from the date it is filed in the office of the Clerk. Failure to file written objections to the proposed findings and recommendations contained in this report and recommendation within fourteen (14) days from the date it is filed shall bar an aggrieved party from attacking the factual findings on appeal. Written objections shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection.
The Clerk of the Court is DIRECTED to serve a copy of this report and recommendation on counsel for the United States and the defendant.